Fundamental Rights Report 2017 - FRA Opinions

Diverse efforts at both EU and national levels sought to bolster fundamental rights protection in 2016, while some measures threatened to undermine such protection. FRA’s Fundamental Rights Report 2017 reviews major developments in the field, identifying both achievements and remaining areas of concern. This publication presents FRA’s opinions on the main developments in the thematic areas covered, and a synopsis of the evidence supporting these opinions. In so doing, it provides a compact but informative overview of the main fundamental rights challenges confronting the EU and its Member States.

The 10th anniversary of the European Union Agency for Fundamental Rights (FRA) offers an opportunity to reflect on some of the dynamics underpinning the major fundamental rights developments in the EU since 2007.

This focus section reflects on the progress the EU has made over the last 10 years in establishing fundamental rights as the cornerstone of its identity. It explores the tangible impact of the fundamental rights framework by drawing on evidence and legal expertise provided by FRA over the first decade of its existence.

The Charter of Fundamental Rights of the European Union complements national human rights documents and the European Convention on Human Rights (ECHR). Its potential is not yet fully exploited, with references thereto in national courts, parliaments and governments limited in number and often superficial. However, there are examples of the Charter adding value and profiting from its standing as part of Union law, especially in court decisions. Meanwhile, EU Member States continue to lack policies aimed at promoting the Charter – though awareness of the need to train legal professionals on Charter-related issues appears to be growing.

In this chapter:

National high courts’ use of the Charter: a mixed picture

National legislative processes and parliamentary debates: Charter of limited relevance

FRA opinion 1.1

The EU and its Member States should encourage greater information exchange on experiences and approaches between judges and administrations within the Member States but also across national borders. In encouraging this information echange, Member States should make best use of existing funding opportunities, such as those under the Justice programme.

Supporting evidence

According to the case law of the Court of Justice of the European Union (CJEU), the EU Charter of Fundamental Rights is binding on EU Member States when acting within the scope of EU law. The EU legislature affects, directly or indirectly, the lives of people living in the EU. EU law is relevant in the majority of policy areas. In light of this, the EU Charter of Fundamental Rights should form a relevant standard when judges or civil servants in the Member States deliver on their day-to-day tasks. FRA’s evidence suggests, however, that judiciaries and administrations make only rather limited use of the Charter at national level. More awareness could contribute to increased and more consistent application of the Charter at national level.

FRA opinion 1.2

National courts, as well as governments and/or parliaments, could consider a more consistent ‘Article 51 (field of application) screening’ to assess at an early stage whether a judicial case or legislative file raises questions under the EU Charter of Fundamental Rights. The development of standardised handbooks on practical steps to check the Charter’s applicability – so far the case only in very few Member States – could provide legal practitioners with a tool to assess the Charter’s relevance in a particular case or legislative proposal.

Supporting evidence

According to Article 51 (field of application) of the EU Charter of Fundamental Rights, all national legislation implementing EU law has to conform to the Charter. As in past years, the Charter’s role in legislative processes at national level remained limited in 2016: the Charter is not a standard that is explicitly and regularly applied during procedures scrutinising the legality or assessing the impact of upcoming legislation – whereas national human rights instruments are systematically included in such procedures. Moreover, just as in past years, many decisions by national courts that used the Charter did so without articulating a reasoned argument about why the Charter applied in the specific circumstances of the case.

1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.
2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.

FRA opinion 1.3

EU Member States should ensure that relevant legislative files and policies are checked for Charter compliance and increase efforts to ensure that Charter obligations are mainstreamed whenever states act within the scope of EU law. This could include dedicated policymaking to promote awareness of the Charter rights and targeted training modules in the relevant curricula for national judges and other legal practitioners. As FRA has stressed in previous years, it is advisable for the Member States to embed training on the Charter in the wider human rights framework, including the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR).

Supporting evidence

Under Article 51 of the EU Charter of Fundamental Rights, EU Member States are obliged to respect and observe the principles and rights laid down in the Charter, while they are also required to actively “promote” the application of these principles and rights. In light of this, more policies promoting the Charter and its rights at national level should be expected. Whereas such policies are rare, there appear to be increased efforts to provide human rights training to relevant professional groups.

EU Member States did not reach an agreement on the proposed Equal Treatment Directive by the end of 2016. Several Member States, however, continued to extend protection against discrimination to different grounds and areas of life. Various domestic court decisions upheld the rights of persons with disabilities, and diverse efforts at international, European and national level sought to advance LGBTI equality. Meanwhile, measures and proposals to ban certain garments sparked debates on freedom of religion and belief, amid fears caused by the threat of terrorism. The year ended with a growing acknowledgement that addressing discrimination based on a single ground fails to capture the different ways in which people in the EU experience discrimination in their daily lives.

FRA opinion 2.1

The EU legislator should consider all avenues to ensure that the proposed Equal Treatment Directive is adopted swiftly to guarantee equal protection against discrimination on the grounds of religion or belief, disability, age or sexual orientation across key areas of life.

Supporting evidence

Negotiations on the proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation – the Equal Treatment Directive – entered their eighth year in 2016. Adopting this directive would guarantee that the EU and its Member States offer a comprehensive legal framework against discrimination on these grounds on an equal basis. By the year’s end, the negotiations had not reached the unanimity required in the Council of the EU for the directive to be adopted, with two Member States holding general reservations towards the proposal. As a result, EU law is still effectively marked by a hierarchy of grounds of protection from discrimination. Article 21 (principle of non-discrimination) of the EU Charter of Fundamental Rights prohibits discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. Article 19 of the Treaty on the Functioning of the European Union holds that the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

FRA opinion 2.2

EU Member States should consider adding grounds of protection against discrimination to broaden the scope of national anti-discrimination legislation.

Supporting evidence

As in previous years, EU Member States extended protection against discrimination to additional grounds and different areas of life in 2016. For instance, some Member States introduced a person’s socio-economic status or gender reassignment as protected grounds in their national legislation. Other Member States extended non-discrimination law to areas such as consumer protection, age redundancy clauses and retirement age. Such steps further contribute to tackling discrimination and foster equal treatment across a broad range of key areas of life.

While awareness of the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons is on the rise across the European Union, hurdles to their full enjoyment of their fundamental rights remain. This report updates FRA’s 2010 report on homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity.

The fundamental rights of lesbian, gay, bisexual and transgender (LGBT) people are often not respected across the EU. Public officials and other professionals in education, healthcare and law enforcement are entrusted with the duty to ensure that everyone’s fundamental rights are protected and promoted.

FRA opinion 2.3

EU Member States should pay utmost attention to the need to safeguard fundamental rights and freedoms when considering any bans on symbols or garments associated with religion. Any legislative or administrative proposal to this end should not disproportionally limit the freedom to exercise one’s religion. When considering such bans, fundamental rights considerations and the need for proportionality should be embedded from the outset.

Supporting evidence

Against a backdrop of heightened tension caused by the threat of terrorism in the EU in 2016, national courts dealt with the question of when it is acceptable to ban particular types of clothing, with related cases pending before the Court of Justice of the EU (CJEU). These cases revealed that the introduction of such bans risks disproportionally affecting and leading to discrimination against Muslim women who choose to wear certain garments as an expression of their religious identity or beliefs. Article 10 of the EU Charter of Fundamental Rights guarantees everyone’s right to freedom of thought, conscience and religion. This right includes the freedom to change religion or belief and the freedom to manifest religion or belief in worship, teaching, practice and observance, either alone or in community with others. Article 21 of the EU Charter of Fundamental Rights prohibits any discrimination on the ground of religion or belief. Article 22 of the EU Charter of Fundamental Rights further provides that the Union shall respect cultural, religious and linguistic diversity.

1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.

FRA opinion 2.4

The EU and its Member States should acknowledge multiple and intersectional discrimination when developing and implementing legal and policy instruments to combat discrimination, foster equal treatment and promote inclusion.

Supporting evidence

The year 2016 saw a growing acknowledgement that addressing discrimination from the perspective of a single ground fails to capture the different ways in which people experience discrimination in their daily lives. This is evidenced in the continued trend at national level to enlarge the scope of anti-discrimination legislation by adding protected grounds and/or areas of life in relevant national legislation. Yet, the EU and its Member States still tend not to deal explicitly with multiple discrimination when developing legal and policy instruments. By the end of 2016, only nine EU Member States explicitly covered multiple discrimination in national legislation. Such an approach can lead to better recognition of how people experience discrimination in their daily lives and enable devising courses of action that would truly foster inclusion.

Racist and xenophobic reactions towards refugees, asylum seekers and migrants persisted across the European Union in 2016. Muslims experienced growing hostility and intolerance, while discrimination and anti-Gypsyism continued to affect many Roma. The European Commission set up a High Level Group on combating racism, xenophobia and other forms of intolerance to support national efforts in this area, as well as to counter hate crime and hate speech. EU Member States targeted hate crime in diverse ways, reviewing classifications of bias motivations, conducting awareness-raising campaigns and providing specialised training to law enforcement officers and prosecutors. Meanwhile, the European Commission continued to monitor implementation of the Racial Equality Directive. Recurring challenges include various impediments to equality bodies’ effectiveness and independence, discriminatory ethnic profiling and a lack of national action plans to fight racism.

FRA opinion 3.1

EU Member States should ensure that any case of alleged hate crime or hate speech – including those specifically targeting asylum seekers, refugees and migrants – is effectively investigated, prosecuted and tried. This needs to be done in accordance with applicable national provisions and, where relevant, in compliance with the provisions of the EU Framework Decision on Racism and Xenophobia, European and international human rights obligations, as well as ECtHR case law on hate crime and hate speech. Member States could also collect more detailed data on incidents that specifically target refugees, asylum seekers and migrants.

Supporting evidence

Racist and xenophobic reactions to the arrival of refugees, asylum seekers and migrants in the EU that marked 2015 continued unabated in 2016. They included hate speech, threats, hate crime and even murder. Yet very few Member States collect specific data on incidents that target refugees, asylum seekers and migrants. This is particularly relevant for the implementation of Article 1 of the EU Framework Decision on Racism and Xenophobia, which outlines measures Member States shall take to punish certain intentional racist and xenophobic conduct. Article 4 (a) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) obliges State parties to make incitement to racial discrimination, as well as acts of violence against any race or group of persons, offences punishable by law. All EU Member States are parties to ICERD.

Asylum seekers and migrants face various forms of violence and harassment across the European Union (EU). As this month’s report on the migration situation underscores, such acts are both perpetrated and condoned by state authorities, private individuals, as well as vigilante groups. They increasingly also target activists and politicians perceived as ‘pro-refugee’.

FRA opinion 3.2

EU Member States should adopt specific national action plans to fight racism, racial discrimination, xenophobia and related intolerance. In this regard, Member States could follow the exhaustive and practical guidance offered by the Office of the United Nations High Commissioner for Human Rights on how to develop such specific plans. In line with this guidance, the action plans should set goals and actions, assign responsible state bodies, set target dates, include performance indicators, and provide for monitoring and evaluation mechanisms.

Supporting evidence

Few EU Member States had dedicated national actions plans to fight racial discrimination, racism or xenophobia in place in 2016. This is the case even though the United Nation’s Durban Declaration and Programme of Action resulting from the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance assigns states primary responsibility for combating racism, racial discrimination, xenophobia and related intolerance. Implementing such plans would provide EU Member States with an effective means for ensuring that they meet their obligations under the Racial Equality Directive and the Framework Decision on Racism and Xenophobia. The EU High Level Group on combating racism, xenophobia and other forms of intolerance – formed in June 2016 –provides EU Member States with a forum for exchanging practices to secure the successful implementation of such action plans.

FRA opinion 3.3

EU Member States should make efforts to systematically record, collect and publish annually comparable data on ethnic discrimination and hate crime to enable them to develop effective, evidence-based legal and policy responses to these phenomena. These data should include different bias motivations as well as other characteristics, such as incidents’ locations and anonymised information on victims and perpetrators. Any data should be collected in accordance with national legal frameworks and EU data protection legislation.

Supporting evidence

Systematically collecting disaggregated data on incidents of ethnic discrimination, hate crime and hate speech can contribute to better application of the Racial Equality Directive and the Framework Decision on Racism and Xenophobia. Such data also facilitates evaluations of policies and action plans to prevent and combat racism, xenophobia and related intolerance. Evidence collected by FRA shows, however, that persistent gaps remain in how EU Member States record incidents of ethnic discrimination and racist crime. Unreported incidents remain invisible and preclude victims from seeking redress. This is particularly relevant considering EU Member States’ obligation to actively ensure the effective protection of victims and guarantee their access to effective protection and remedies under Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination. Through the EU High Level Group on Combating Racism, Xenophobia and other forms of intolerance, FRA continues to work with Member States, EU institutions and international organisations to help improve the recording of and data collection on hate crime.

In response to the Council conclusions on combating hate crime in the European Union, which invited EU Member States to take appropriate measures for increasing the reporting of hate crimes by victims, FRA established the Working Party on Improving Reporting and Recording of Hate Crime in the EU.

This compendium is the key output of the Working Party. It collates practices for combating hate crime from across the EU, with a step-by-step description of the practice broken down by country and category. The aim of the compendium is to help policymakers and practitioners such as law enforcement officers understand what is being done elsewhere in the EU to combat hate crime, and which elements could be adapted for use in their own national contexts.

FRA opinion 3.4

EU Member States should allocate to equality bodies the human, technical and financial resources, premises and infrastructure necessary to allow them to fulfil their functions and deploy their powers within their legal mandate effectively and independently.

Supporting evidence

Evidence from 2016 shows that a number of equality bodies faced budgetary and staff cuts or legislative amendments relating to their mandates, which could affect their effective functioning. Article 13 (2) of the Racial Equality Directive requires all EU Members States to designate an equality body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin. However, the directive only provides minimum standards for the competences of equality bodies. In the context of data protection, EU law refers explicitly to independence and defines what such independence requires. The General Data Protection Regulation, adopted in 2016 calls for sufficient “human, technical and financial resources, premises and infrastructure” for data protection authorities.

FRA opinion 3.5

EU Member States should end discriminatory forms of ethnic profiling. This could be achieved through providing systematic training on anti-discrimination law to law enforcement officers, as well as by enabling them to better understand unconscious bias and challenge stereotypes and prejudice. Such trainings could also raise awareness on the consequences of discrimination and on how to increase trust in the police among the public. In addition, EU Member States could consider recording the use of stop-and-search powers, and in particular recording the ethnicity of those subjected to stops, in accordance with national legal frameworks and EU data protection legislation.

Supporting evidence

Members of ethnic minority groups continued to face discriminatory ethnic profiling by the police in 2016 against a backdrop of heightened tension caused by terrorist attacks in EU Member States. This practice contradicts the principles of the International Convention on the Elimination of All Forms of Racial Discrimination, Article 14 (prohibition of discrimination) of the European Convention on Human Rights, relevant jurisprudence of the European Court of Human Rights, as well as primary and secondary EU law. Training and internal monitoring could help to detect disproportionate targeting of ethnic minorities and lead to corrective action by the relevant authorities.

Despite the ambitious goals set by national Roma integration strategies and the significant contribution of EU funds, little progress was visible in 2016. Over the past year, evidence on the situation of Roma in employment, education, housing and health shows that progress has been slow in respect to implementation of the EU Framework for National Roma Integration Strategies. Discrimination and anti-Gypsyism persist, and de facto segregation in housing and education continue to affect many Roma. The proposed European Pillar of Social Rights could give new impetus to Roma integration efforts, if it includes explicit reference to the right to non-discrimination guaranteed by Article 21 of the EU Charter of Fundamental Rights.

FRA opinion 4.1

EU Member States should review their national Roma integration strategies (or set of integrated policy measures) to ensure that Roma themselves are empowered to actively engage in the process of Roma inclusion. Member States should explicitly identify and implement specific measures to promote the active and meaningful participation and engagement of Roma, especially at local level.

Supporting evidence

During 2016, Roma people across the EU continued to face discrimination, segregation and social exclusion. The limited progress in implementing national Roma integration strategies shows the need for a thorough review of the proposed and planned interventions. There is also a need to promote the active and meaningful participation of Roma, particularly at local level. For local level Roma integration to succeed, the active involvement of multiple stakeholders is of utmost importance, including local authorities, civil society and representatives of all sectors of the local population. National level participation needs to be translated into local-level engagement of Roma and local authorities to produce tangible results on the ground that can be monitored.

LERI is a qualitative action research project under FRA’s multi-annual Roma Programme. It was developed in response to the European Commission’s Communication on an EU Framework for National Roma integration strategies up to 2020. LERI brings together local authorities and residents, in particular Roma, to investigate how they can best be involved in Roma integration actions, and identify which aspects of these actions work, which do not, and why. The aim of the project is to facilitate the engagement of all local stakeholders, including Roma, in joint efforts to enable Roma inclusion. The experience gained and the lessons learned during the process will help improve the design, implementation and monitoring of Roma integration policies and actions at the local level.

FRA opinion 4.2

EU Member States should ensure effective enforcement of the Racial Equality Directive and the Framework Decision on Racism and Xenophobia to tackle persisting discrimination against Roma and anti-Gypsyism. They should adopt explicit policy measures to address anti-Gypsyism in their national Roma integration strategies or set of integrated policy measures.

Supporting evidence

Findings of FRA’s second wave of the European Union Minorities and Discrimination Survey (EU-MIDIS II) show that Roma continued to be discriminated against because of their ethnicity in 2016. They face social exclusion and marginalisation, exacerbated by poverty, and are victims of hate crime. Most Roma living in the EU still do not enjoy their right to non-discrimination as recognised under Article 21 of the EU Charter of Fundamental Rights, the Racial Equality Directive and other European and international human rights instruments. While the Racial Equality Directive outlaws ethnic discrimination and the EU’s Framework Decision on Racism and Xenophobia requires criminal sanctions, such legal measures alone do not suffice to address the discrimination of Roma. They need to be combined with active inclusion policies to address the racial inequality and poverty that Roma frequently experience.

FRA opinion 4.3

The EU should consider including Roma integration in the context of the proposed European Pillar of Social Rights. The pillar should envisage specific provisions addressing the risk of structural discrimination, by, for example, reinforcing the provisions for equal treatment in the workplace and ensuring marginalised populations can effectively exercise their rights.

Supporting evidence

Findings of FRA’s second EU Minorities and Discrimination Survey (EU-MIDIS II) show that employment is an area where discrimination against Roma triggers a chain of other vulnerabilities – namely, as regards income, education and housing conditions. Entire households, and not just the unemployed, bear the negative implications of unemployment. Roma children and Roma women constitute especially vulnerable groups with their rights at risk of violation.

Some 80% of Roma surveyed live below their country’s at-risk-of-poverty threshold; every third Roma lives in housing without tap water; every third Roma child lives in a household where someone went to bed hungry at least once in the previous month; and 50% of Roma between the ages of six and 24 do not attend school. This report underscores an unsettling but unavoidable reality: the European Union’s largest ethnic minority continues to face intolerable discrimination and unequal access to vital services.

FRA opinion 4.4

EU Member States should – in accordance with national legal frameworks, EU data protection legislation and with the active and meaningful engagement of Roma communities – collect anonymised data disaggregated by ethnic identity, allowing the assessment of the National Roma Integration Strategies and policies on Roma inclusion. Eurostat could include relevant questions in large-scale surveys, such as the Labour Force Survey and the EU Statistics on Income and Living Conditions, thereby following the recommendation of the European Court of Auditors. In addition, Member States should develop or use existing monitoring tools of national Roma integration strategies to assess the impact of Roma integration measures.

Supporting evidence

Tracking progress on Roma integration requires solid data – both on the measures taken, the processes and their outcomes for the people. More needs to be done to ensure the availability of robust data collection and solid monitoring of Roma integration. The European Court of Auditors’ Special Report on the EU policy initiatives and financial support for Roma integration confirmed this need. It found that the lack of comprehensive and robust data remains problematic not only in relation to projects, but also for policymaking at EU and national level. However, tools allowing for solid monitoring do exist and the relevant actors can make use of these tools.

More than 5,000 people died when crossing the sea to reach Europe in 2016, even though irregular arrivals by sea dropped by over 60 % from 2015, totalling some 350,000 in 2016. Wide-ranging changes to the European asylum system were proposed while efforts to improve the efficiency of return policies intensified. Legal avenues to reach safety in Europe remained illusory for most migrants, since new restrictions to family reunification in some EU Member States offset the small progress achieved in humanitarian admissions. Information technology systems were reinforced to better combat irregular migration and respond to threats of serious crimes. Meanwhile, integrating the significant number of people granted international protection proved challenging, including in the educational context.

FRA opinion 5.1

The EU and its Member States should ensure that information systems for migration management are designed so that officers who handle the data contained therein can only access data in accordance with their work profiles. Officers should only have access to data relevant for the specific tasks they are carrying out at a given moment in time, and be fully aware of which databases they are consulting. Since interoperability means that more data – including biometric data – are more easily accessible, Member States should develop quality standards and administrative procedures to secure the accuracy of the data and limit the risks of unauthorised sharing of data with third parties or countries. Moreover, they should introduce specific safeguards to guarantee that interoperability does not lead to adverse effects on the rights of vulnerable persons, such as applicants for international protection or children, or to discriminatory profiling.

Supporting evidence

In 2016, EU institutions and Member States made significant efforts to develop further information systems for migration management and internal security purposes. Existing systems were modified and new systems were proposed. For the future, the plan is to make such systems ‘interoperable’, allowing the competent authorities to access multiple systems simultaneously. A forthcoming FRA publication on the interoperability of EU information systems will address the related fundamental rights concerns. In many cases, the fundamental rights impact of information systems is not immediately visible. The consequences of storing incorrect personal data stored may affect an individual only years later – for example, when applying for a visa or a residence permit. Article 8 (protection of personal data) of the EU Charter of Fundamental Rights and in particular its principle of purpose limitation (i.e. that data are only used for the purpose for which they were collected) is a central standard when developing technical solutions to improve interoperability between information systems. Therefore, all steps to enhance existing information systems and create new ones should be subject to a comprehensive fundamental rights impact assessment.

Processing biometric data for immigration, asylum and border management purposes has become common. This focus paper looks at measures authorities can take to enforce the obligation of newly arrived asylum seekers and migrants in an irregular situation to provide fingerprints for inclusion in Eurodac.

FRA opinion 5.2

EU Member States should require the responsible authorities to examine in each individual case whether a legitimate objective can be achieved through less coercive measures before issuing a detention order. If this is not the case, the authorities should provide reasons in fact and in law.

Supporting evidence

Article 6 of the EU Charter of Fundamental Rights, as well as secondary EU law in the field of asylum and return, requires Member States to examine in each individual case the viability of more lenient measures before resorting to deprivation of liberty. By the end of 2016, all EU Member States provided for alternatives to detention in their national laws, albeit in some cases for certain categories only. However, the inclusion of alternatives to detention into national legislation is in itself not a guarantee that these are applied. In practice, alternatives remain little used.

FRA opinion 5.3

EU Member States should consider using a combination of refugee-related schemes and more refugee-friendly, regular mobility schemes to promote legal pathways to the EU. In this context, they should refrain from adopting legislation that would result in hindering, preventing or significantly delaying family reunification of persons granted international protection.

The EU could consider regulating family reunification of subsidiary protection status holders to address the different approaches taken by Member States.

Supporting evidence

Legal avenues to reach safety continued to be illusory for most refugees. There was some progress on resettlement in 2016, but this was offset by a step backwards concerning family reunification, with several EU Member States introducing restrictions in their national laws. Any action undertaken by a Member State, when acting within the scope of EU law, must respect the rights and principles of the EU Charter of Fundamental Rights, which enshrines in Article 7 the right to respect for private and family life. In the case of refugees and persons granted subsidiary protection, it can generally be assumed that insurmountable obstacles prevent their families from living in the home country and that establishing family life in a transit country is usually not an option.

During the large movements along the Balkan route, many families were split up and tracing mechanisms were put under strain. More recently, several EU Member States have introduced legal restrictions on family reunification, as reported in previous FRA monthly reports.

FRA opinion 5.4

EU Member States should ensure that migrant and refugee children are effectively supported through linguistic, social and psychological support based on individual assessments of their needs. This would prepare them to attend school and integrate successfully in education and local communities. Policies and measures should be in place to avoid separated schooling and segregation and to promote access of migrant and refugee children to regular classes and the mainstream education system.

Supporting evidence

Upholding every child’s right to education in the continuing movement of migrant and refugee families in the EU is a major responsibility for the EU Member States. Article 14 of the EU Charter of Fundamental Rights and Article 28 of the United Nations Convention on the Rights of the Child guarantee the right to education to every child, including migrant and refugee children. Making sure that all children enjoy their right to education will benefit not only them, but also the societies they will live in. This underlines that it is important and beneficial for both the economy and society at large to invest in human rights. 2016 shows that most Member States provided language support and aim to integrate refugee and migrant children in regular classes, allowing for their socialisation with other children and investing in long-term and sustainable social cohesion. However, the level of separated and segregated schooling remains too high.

FRA opinion 5.5

EU Member States should address adequately discriminatory or violent reactions against the schooling of migrant and refugee children, both through law enforcement and by promoting mutual understanding and social cohesion. They should apply positive measures for fighting prejudices and help eradicate unfounded concerns. Furthermore, the Member States’ authorities should enforce laws and rules against discrimination and hate-motivated crimes on any ground – including ethnic origin, race and religion – that are in force in all EU Member States.

Supporting evidence

FRA evidence shows that in 2016 most EU Member States stepped up their efforts to introduce migrant and refugee children in education and support their integration. However, in very few cases, there are still migrant and refugee children who do not attend school, and some local communities and parents of native children react negatively to or even with violence against their schooling together with other children. Expressions of intolerance and hatred towards migrant and refugee children and their families that lead to the deprivation of the children’s right to education violates EU and national legislation against discrimination and hatred. Addressing parents’ concerns can support integration and promote the participation of migrants and refugees in local communities.

FRA opinion 5.6

EU Member States should share good practices and experiences in integration through education, promoting the participation of children’s parents and families in school life, and making the right to education a reality for all children.

Supporting evidence

Involving children’s parents and families in school life and supporting their efforts to get involved is a crucial part of the education and integration process. A third of the EU Member States do provide measures to support and encourage parents and families of migrant and refugee children by involving them in the education process through information, mediation and language support. Such measures may improve the children’s school performance, their and their families’ integration in education and in local communities, and foster better community relations. The European Integration Network, whose status was upgraded through the European Commission Action Plan on Integration launched in June 2016, is an adequate framework and space for sharing best practices and solutions that can help Member States to both fulfil their human rights obligations and invest successfully in more cohesive and inclusive societies.

The year’s terrorist attacks in Brussels, Nice and Berlin further intensified debates about ways to effectively fight terrorism in compliance with the rule of law. A number of steps were taken in this respect at both EU and national levels. They include national reforms on surveillance measures, consultations on encryption and the adoption of the Passenger Name Record (PNR) Directive. Meanwhile, the adoption of the General Data Protection Regulation (GDPR) and the Data Protection Directive for the police and criminal justice sector (Police Directive) constituted a crucial step towards a modernised and more effective data protection regime. The EU in 2016 did not propose revised legislation in response to the Court of Justice of the European Union’s (CJEU) earlier invalidation of the Data Retention Directive, but new CJEU case law further clarified how data retention can comply with fundamental rights requirements.

In this chapter:

Responding to terrorism: surveillance, encryption and passenger name records – international standards and national law

FRA opinion 6.1

EU Member States should undertake a broad public consultation with a full range of stakeholders, ensure transparency of the legislative process, and incorporate relevant international and European standards and safeguards when introducing reforms to their legislation on surveillance.

Supporting evidence

FRA evidence, which builds on research on the protection of fundamental rights in the context of large-scale surveillance carried out at the European Parliament’s request, shows that a number of EU Member States reformed their legal frameworks relating to intelligence gathering throughout the year. Enacted amid a wave of terrorist attacks, these changes enhanced the powers and technological capacities of the relevant authorities and may increase their intrusive powers – with possible implications for the fundamental rights on privacy and protection of personal data. The Court of Justice of the European Union and the European Court of Human Rights provide essential guidance on how to protect best these rights. Legal safeguards include: substantive and procedural guarantees of a measure’s necessity and proportionality; independent oversight and the guarantee of effective redress mechanisms; and rules on providing evidence of whether an individual is being subjected to surveillance. Broad consultations can help to ensure that intelligence law reforms provide for a more effective, legitimate functioning of the services and gain the support of citizens.

FRA opinion 6.2

EU Member States should ensure that measures to overcome the challenges of encryption are proportionate to the legitimate aim of fighting crime and do not unjustifiably interfere with the rights to private life and data protection.

Supporting evidence

Encryption is perhaps the most accessible privacy enhancing technique. It is a recognised method of ensuring secure data processing in the General Data Protection Regulation (GDPR) as well as the e-Privacy Directive. However, the protection it provides is also used for illegal and criminal purposes. The spread of services providing end-to-end encryption further adds to the tension between securing privacy and fighting crime, as they, by design, prevent or make more difficult access to encrypted data by law enforcement authorities. To overcome this challenge, some Member States have started considering – or have already enacted – legislation that requires service providers to have built-in encryption backdoors that, upon request, allow access to any encrypted data by law enforcement and secret services. As had been noted by many, however, such built-in backdoors can lead to a general weakening of encryption, since they can be discovered and exploited by anyone with sufficient technical expertise. Such exposure could run counter to what data protection requires and could indiscriminately affect the security of communications and stored data of states, businesses and individuals.

FRA opinion 6.3

EU Member States should transpose the Network and Information Security Directive into their national legal frameworks in a manner that takes into account Article 8 of the EU Charter of Fundamental Rights and the principles laid down in the General Data Protection Regulation. Member States and companies should also act in compliance with these standards when processing or transferring personal data based on the EU-U.S. Privacy Shield.

Supporting evidence

The General Data Protection Regulation, which will apply as of 2018, lays down enhanced standards for achieving effective and adequate protection of personal data. Data protection authorities will play an even more significant role in safeguarding the right to data protection. Any new legal act in the field of data protection will have to respect the enhanced standards set out in the regulation. For example, in 2016 the EU adopted an adequacy decision for the purpose of international data transfers: the EU-U.S. Privacy Shield. This decision explicitly states that the European Commission will regularly assess whether the conditions for adequacy are still guaranteed. Should such assessment be inconclusive following the entry into application of the General Data Protection Regulation, the decision asserts that the Commission may adopt an implementing act suspending the Privacy Shield. Furthermore, in 2016, the EU adopted its first piece of legislation on cyber security – the Network and Information Security Directive – and, in early 2017, in the context of the Digital Single Market Strategy, the Commission proposed an e-Privacy Regulation to replace the e-Privacy Directive.

FRA opinion 6.4

EU Member States should, within their national frameworks on data retention, avoid general and indiscriminate retention of data by telecommunication providers. National law should include strict proportionality checks as well as appropriate procedural safeguards so that the rights to privacy and the protection of personal data are effectively guaranteed.

Supporting evidence

The European Parliament Civil Liberties, Justice and Home Affairs Committee (LIBE) rejected the proposal for an EU Passenger Name Record (PNR) Directive in April 2013 due to concerns about proportionality and necessity, and a lack of data protection safeguards and transparency towards passengers. Emphasising the need to fight terrorism and serious crime, the EU legislature in 2016 reached an agreement on a revised EU PNR Directive and adopted the text. Member States have to transpose the directive into national law by May 2018. The adopted text includes enhanced safeguards that are in line with FRA’s suggestions in its 2011 Opinion on the EU PNR data collection system. These include enhanced requirements, accessibility and proportionality, as well as further data protection safeguards. There are, however, fundamental rights protection aspects that the directive does not cover.

FRA opinion 6.5

EU Member States should enhance data protection safeguards to ensure that the highest fundamental rights standards are in place. This also applies to the transposition of the EU Passenger Name Record (PNR) Directive. In light of recent CJEU case law, safeguards should particularly address the justification for retaining Passenger Name Record data, effective remedies and independent oversight.

Supporting evidence

The European Parliament Civil Liberties, Justice and Home Affairs Committee (LIBE) rejected the proposal for an EU Passenger Name Record (PNR) Directive in April 2013 due to concerns about proportionality and necessity, and a lack of data protection safeguards and transparency towards passengers. Emphasising the need to fight terrorism and serious crime, the EU legislature in 2016 reached an agreement on a revised EU PNR Directive and adopted the text. Member States have to transpose the directive into national law by May 2018. The adopted text includes enhanced safeguards that are in line with FRA’s suggestions in its 2011 Opinion on the EU PNR data collection system. These include enhanced requirements, accessibility and proportionality, as well as further data protection safeguards. There are, however, fundamental rights protection aspects that the directive does not cover.

Almost 27 % of children in the EU are at risk of poverty or social exclusion. While this is a slight improvement compared with previous years, the EU 2020 goals remain unreachable. The new EU Pillar of Social Rights could play an important role in addressing child poverty. The adoption of a directive on procedural safeguards for children suspected or accused of crime is expected to improve juvenile justice systems and bring further safeguards for children in conflict with the law. Meanwhile, thousands of migrant and asylum-seeking children travelling alone or with their families continued to arrive in Europe in 2016. Despite EU Member States’ efforts, providing care and protection to these children remained a great challenge. Flaws in reception conditions persisted, with procedural safeguards inconsistently implemented, foster care playing only a limited role and guardianship systems often falling short. These realities underscored the importance of replacing the expired EU Action Plan on unaccompanied children with a new plan on children in migration.

FRA opinion 7.1

The EU should place more emphasis on comprehensively addressing child poverty and social exclusion in the European Semester – making better use of the 2013 European Commission recommendation – as well as in upcoming initiatives, such as the European Pillar of Social Rights. This could include focusing attention in the European Semester on those EU Member States where child poverty rates remain high and unchanged in recent years.

EU Member States, with the support of the European Commission, could analyse and replicate, when appropriate, success factors in law and economic- and social policies of those Member States that managed in recent years to improve the situation of children and their families.

Supporting evidence

At almost 27 %, the proportion of children living at risk of poverty or social exclusion in the EU remains high. This being the EU average, the proportion is higher in certain Member States and among certain groups, such as Roma children or children with a migrant origin. The Europe 2020 target on poverty reduction is thus still far from being reached. Article 24 of the EU Charter of Fundamental Rights requires that “(c)hildren shall have the right to such protection and care as is necessary for their well-being”. Nonetheless, EU institutions and Member States put little emphasis on child poverty and social exclusion in the European Semester. The EU has taken a number of initiatives that could strengthen Member States’ legislative, policy and financial measures, including the 2013 European Commission Recommendation on ‘Investing in children: breaking the cycle of disadvantage’, the Structural Reform Support Programme 2017-2020 and the adoption of a child-focused European Pillar of Social Rights.

FRA opinion 7.2

EU Member States should undertake a national review to identify existing practice and barriers, gaps or weaknesses in their respective juvenile justice systems. A plan of action should follow this national review to define policy measures and the required resources for the full implementation of the Directive on procedural safeguards for children who are suspects or accused persons in criminal proceedings. This could include training for judicial actors or the development of practical guidelines for individual assessments and for informing children in an age-appropriate manner.

Supporting evidence

The Directive on procedural safeguards for children who are suspects or accused persons in criminal proceedings is an important milestone in a vital and often contentious field of justice. Existing research, as well as the case law of the European Court of Human Rights (ECtHR) and national courts, highlight the need for special protection measures for children in conflict with the law. FRA research on children and justice shows that the legal framework to safeguard children is usually in place, but that the practical implementation of such legislation remains difficult, mainly due to a lack of practical tools, guidance or training for professionals.

Around 2.5 million children participate in judicial proceedings across the European Union (EU) every year, affected by parental divorce or as victims of, or witnesses to, crime. Although their effective participation in such proceedings is vital for improving the operation of justice, the treatment of children in justice systems remains a concern. FRA investigated to what extent children’s rights to be heard, to be informed, to be protected, and to non-discrimination are fulfilled in practice.

FRA opinion 7.3

The EU should develop an EU action plan on children in migration, including unaccompanied children, setting up clear policy priorities and measures to complement EU Member States’ initiatives.

EU Member States should strengthen their child protection systems by applying national standards on alternative care to asylum-seeking and immigrant children, focusing on the quality of care. This should include, as prescribed in the Reception Conditions Directive on, placements with foster families for unaccompanied children. Furthermore, Member States should allocate enough resources to the municipal services that provide support to unaccompanied children.

Supporting evidence

Migrant and asylum-seeking children continued to arrive in Europe during 2016, alone or together with their families. Evidence collected by FRA shows that despite Member States’ efforts there are clear weaknesses in the reception system of unaccompanied children, such as a lack of specialised facilities and crowded or inadequate first reception and transit facilities. Placing unaccompanied children with foster families is not yet a widely used option. Evidence suggests that providing adequate reception conditions is vital to prevent trafficking and exploitation of children, or children going missing. The European Commission has presented a number of proposals to reform the Common European Asylum System, while the 2011-2014 Action Plan on Unaccompanied Minors has not been renewed.

FRA opinion 7.4

The EU legislator should put forward a coherent concept of guardianship systems with a clear role in safeguarding the best interests of unaccompanied children in all aspects of their lives.

EU Member States should ensure that child protection systems and guardianship authorities have an increased role in asylum and migration procedures involving children. Member States should develop or strengthen their guardianship systems and allocate necessary resources. They should ensure the prompt appointment of a sufficient number of qualified and independent guardians for all unaccompanied children. Finally, they could consider promising practices and existing research and handbooks, such as the European Commission’s and FRA’s joint Handbook on guardianship for children deprived of parental care, to support this process.

Supporting evidence

Appointing a guardian for each unaccompanied child remains a challenge, as evidence collected by FRA shows. The main issues relate to lengthy appointment procedures and timelines, difficulties in recruiting qualified guardians, the high number of children assigned to each guardian, and a lack of independence and guarantees of impartiality of guardianship institutions in some EU Member States. The European Commission proposal to review the Reception Conditions Directive includes improvements to guardianship systems for unaccompanied children. The proposal requires appointing guardians who are responsible for looking after the child’s best interests in all aspects of the child’s life, not just for legally representing them. By contrast, the proposals for a revised Dublin Regulation and Asylum Procedures Directive require only the appointment of a “legal representative” and not of a “guardian”.

This report explores the key features of guardianship systems put in place to cater for the needs of all children in need of protection, including child victims and those at risk of becoming victims of trafficking in human beings or of other forms of exploitation. The research covers four specific areas, namely the type of guardianship systems in place, the profile of appointed guardians, the appointment procedures, and the tasks of the guardians.

The EU and other international actors tackled various challenges in the areas of rule of law and justice throughout the year. Several EU Member States strengthened the rights of persons suspected or accused of crime to transpose relevant EU secondary law, and the EU adopted new directives introducing further safeguards. Many Member States also took steps to improve the practical application of the Victims’ Rights Directive to achieve effective change for crime victims, including in the context of support services. The final three EU Member States – Bulgaria, the Czech Republic and Latvia – signed the Istanbul Convention in 2016, underscoring that all EU Member States accept the convention as defining European standards of human rights protection in the area of violence against women and domestic violence. Meanwhile, the convention continued to prompt diverse legislative initiatives at Member State level.

FRA opinion 8.1

All relevant actors at national level, including governments, parliaments and the judiciary, need to step up efforts to uphold and reinforce the rule of law. They all have responsibilities to address rule of law concerns and play an important role in preventing any erosion of the rule of law. EU and international actors are encouraged to strengthen their efforts to develop objective comparative criteria (like indicators) and contextual assessments. Poland should consider the advice from European and international human rights monitoring mechanisms, including the Commission’s recommendations issued as part of its Rule of Law Framework procedure.

Supporting evidence

EU and other international actors continued in 2016 to tackle ongoing challenges in the area of justice and, in particular, the rule of law. The rule of law is part of and a prerequisite for the protection of all values listed in Article 2 of the Treaty on European Union (TEU). Developments implicating the rule of law and fundamental rights in Poland for the first time prompted the European Commission to carry out an assessment of the situation in a Member State based on its Rule of Law Framework. This resulted in a formal opinion followed by recommendations on how the country should address the noted rule of law concerns. After the Polish government rejected these recommendations, the European Commission issued complementary recommendations, taking into account the most recent developments in Poland.

FRA opinion 8.2

EU Member States – working closely with the European Commission and other EU bodies – should continue their efforts to ensure that procedural rights in criminal proceedings are duly reflected in national legal orders and effectively implemented across the EU. Such measures could include providing criminal justice actors with targeted and practical guidance and training, as well as increased possibilities for communication between these actors.

Supporting evidence

Many EU Member States continued to propose legislative amendments to comply with the requirements of Directives 2010/64/EU and 2012/13/EU – on the right to translation and interpretation, and to information in criminal proceedings – after the directives’ transposition deadlines. Member States also adopted new laws to transpose Directive 2013/48/EU on the right to access to a lawyer. FRA’s evidence from 2016 shows, however, that EU Member States still have work to do concerning these directives, particularly in adopting policy measures – such as concrete guidance and training on protecting the rights of suspected and accused persons. There is also untapped potential for the exchange of knowledge, good practices and experience concerning the three directives. Such exchanges could contribute to building an EU system of justice that works in synergy and respects fundamental rights.

Protecting the human rights of individuals subject to criminal proceedings is an essential element of the rule of law. Persons who are suspected or accused of crimes in countries other than their own are particularly vulnerable, making appropriate procedural safeguards especially crucial. This report reviews Member States’ legal frameworks, policies and practices regarding the important rights provided in these directives, including with respect to individuals whose needs may require additional attention, such as persons with disabilities and children.

FRA opinion 8.3

EU Member States should address gaps in the provision of generic victim support services. It is important to enable and empower crime victims to enjoy effectively their rights, in line with the minimum standards laid out in the Victims’ Rights Directive. This should include strengthening the capacity and funding of comprehensive victim support services that all crime victims can access free of charge. In line with the directive, EU Member States should also strengthen specialised services for vulnerable victims, such as children and victims of hate crime.

Supporting evidence

In 2016, many EU Member States focused on fulfilling the obligations imposed by the Victims’ Rights Directive – such as reaching out to more victims and reinforcing the capacity and funding of victim support services, including specialised services for especially vulnerable victims such as children. A notable positive trend was that over a quarter of Member States increased funding to victim support services, leading to the expansion and improvement of services. Despite progress, one clear gap remains in several EU Member States: the lack of generic victim support services – meaning that not all crime victims across the EU can access support that may be vital for them to fulfil their rights.

FRA opinion 8.4

All EU Member States should consider ratifying the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) and implementing it. In line with Article 52 of the Istanbul Convention, and to ensure the immediate and reliable protection of domestic violence victims against repeat victimisation, EU Member States should enact and effectively implement legal provisions allowing the police to order a perpetrator of domestic violence to vacate the residences of a victim and stay at a safe distance from the victim. EU Member States that have such legislation should examine its actual effectiveness on the ground.

Supporting evidence

In 2016, the final three EU Member States (Bulgaria, the Czech Republic and Latvia) signed the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). Meanwhile, in another Member State (Poland) statements were made on the possible renouncement of its commitments to the convention. When it comes to determining European standards for the protection of women against violence, the Istanbul Convention is the most important point of reference. In particular, Article 52 on emergency barring orders obliges parties to ensure that competent authorities are granted the power to order a perpetrator of domestic violence to leave the premises at which the victim resides. This is in line with the Victims’ Rights Directive, which requires EU Member States to ensure that victims are protected against repeat victimisation. However, to date, only about half of the EU Member States have enacted legislation implementing this option in line with the Istanbul Convention. In addition, in Member States that have relevant legislation, assessments concerning its effectiveness are lacking.

The rights of victims of crime to access justice and to be protected against repeat victimisation may remain illusory in practice if the victim fails to receive professional advice and support. This research by the European Union Agency for Fundamental Rights (FRA) examines support service provision for such victims across the 28 EU Member States, in line with the 2012 EU Victims’ Directive. It focuses not on abstract fundamental rights standards but on the final practical results.

Ten years after the United Nations (UN) General Assembly adopted the Convention on the Rights of Persons with Disabilities (CRPD), the convention continues to spur significant legal and policy changes in the EU and its Member States. As attention gradually shifts from the first wave of CRPD-related reforms to consolidating progress made, the recommendations of review and complaints mechanisms at the international, European and national levels are increasingly important in identifying persisting implementation gaps. Monitoring frameworks established under Article 33 (2) of the convention can be essential tools to drive follow-up of these recommendations, particularly those stemming from reviews by the CRPD Committee – but they require independence, resources and solid legal foundations to carry out their tasks effectively.

In this chapter:

The CRPD and the EU: following up on the concluding observations

The CRPD in EU Member States: a decade on, reflection drives reform

Further clarity needed on promoting, protecting and monitoring CRPD implementation

FRA opinion 9.1

The EU should set a positive example by ensuring the rapid implementation of the CRPD Committee’s recommendations to further full implementation of the convention. This will require close cooperation between EU institutions, bodies and agencies – coordinated by the European Commission as focal point for CPRD implementation – as well as with Member States and disabled persons’ organisations. Modalities for this cooperation should be set out in a transversal strategy for CRPD implementation, as recommended by the CRPD Committee.

Supporting evidence

Following the 2015 review of the EU’s progress in implementing the United Nations Convention on the Rights of Persons with Disabilities (CRPD), EU institutions took a range of legislative and policy measures to follow up on some of the CRPD Committee’s recommendations, underlining the Union’s commitment to meeting its obligations under the convention. The committee’s wide-ranging recommendations set out a blueprint for legal and policy action across the EU’s sphere of competence and are relevant for all EU institutions, agencies and bodies.

FRA opinion 9.2

The EU and its Member States should intensify efforts to embed CRPD standards in their legal and policy frameworks to ensure that the rights-based approach to disability, as established in the CRPD, is fully reflected in law and policymaking. This could include a comprehensive review of legislation for compliance with the CRPD. Guidance on implementation should incorporate clear targets and timeframes, and identify actors responsible for reforms.

Supporting evidence

Actions to implement the CRPD helped to drive wide-ranging legal and policy reforms across the EU in 2016, from accessibility to inclusive education, political participation and independent living. Nevertheless, some initiatives at EU and Member State level do not fully incorporate the human rights-based approach to disability required by the CRPD, or lack the clear implementing guidance required to make them effective.

FRA opinion 9.3

The EU and its Member States should take rapid steps to ensure thorough application of the ex-ante conditionalities linked to the rights of persons with disabilities to maximise the potential for EU Structural and Investment Funds (ESIF) to support CRPD implementation. To enable effective monitoring of the funds and their outcomes, the EU and its Member States should also take steps to ensure adequate and appropriate data collection on how ESIF are used.

Supporting evidence

EU Structural and Investment Funds (ESIF) projects agreed in 2016 show that in many areas initiatives to implement the CRPD in EU Member States are likely to benefit from ESIF financial support. The ex-ante conditionalities – conditions that must be met before funds can be spent – can help to ensure that the funds contribute to furthering CRPD implementation. As ESIF-funded projects start to be rolled out, monitoring committees at the national level will have an increasingly important role to play in ensuring that the funds meet CRPD requirements.

FRA opinion 9.4

The EU and its Member States should take steps to increase awareness of the CRPD among relevant judicial and non-judicial complaint mechanisms to enhance further the important role of the latter in securing CRPD implementation. This could include developing training modules and establishing modalities to exchange national experiences and practices.

Supporting evidence

Evidence collected by FRA in 2016 shows the important role that judicial and non-judicial complaints mechanisms can play in identifying gaps in CRPD implementation and clarifying the scope of the convention’s requirements. Several cases concerning non-discrimination in employment serve to underline the complementarity and mutual relevance of standards at the UN, EU and national levels.

FRA opinion 9.5

EU Member States that have not yet become party to the CRPD and/or its Optional Protocol should consider completing the necessary steps to secure their ratification as soon as possible to achieve full and EU-wide ratification of these instruments. The EU should also consider taking rapid steps to accept the Optional Protocol.

Supporting evidence

By the end of 2016, only Ireland had not ratified the CRPD, although the main reforms paving the way for ratification are now in place. In addition, five Member States and the EU have not ratified the Optional Protocol to the CRPD, which allows individuals to bring complaints to the CRPD Committee and for the Committee to initiate confidential inquiries upon receipt of “reliable information indicating grave or systematic violations” of the convention (Article 6).

FRA opinion 9.6

The EU and its Member States should consider allocating the monitoring frameworks established under Article 33 (2) of the CRPD sufficient and stable financial and human resources. This would enable them to carry out their functions effectively and ensure effective monitoring of CRPD implementation. As set out in FRA’s 2016 legal Opinion concerning the requirements under Article 33 (2) of the CRPD within an EU context, they should also consider guaranteeing the sustainability and independence of monitoring frameworks by ensuring that they benefit from a solid legal basis for their work and that their composition and operation takes into account the Paris Principles on the functioning of national human rights institutions.

Supporting evidence

Four of the 27 EU Member States that have ratified the CRPD had not, by the end of 2016, established or designated frameworks to promote, protect and monitor the implementation of the convention, as required under Article 33 (2) of the convention. Furthermore, FRA evidence shows that the effective functioning of some existing frameworks is undermined by insufficient resources, the absence of a solid legal basis, and a failure to ensure systematic participation of persons with disabilities, as well as a lack of independence in accordance with the Paris Principles on the functioning of national human rights institutions.

This opinion addresses the designation and operation of a framework established under Article 33 (2) of the CRPD at EU level (EU Framework). It aims to clarify the requirements of an EU Framework in light of the monitoring practice and jurisprudence of the CRPD Committee and – with regard to the concept of independence –the Committee interpreting the Paris Principles on the establishment of National Human Rights.

The standards, procedures and institutions that ensure human and fundamental rights in the EU cover local, national and international organisations including the EU itself, the Council of Europe and the United Nations (UN).

The list below describes key developments during 2016 in relation to a number of core international obligations that the EU and its Member States have taken on. Each heading links to a page where full data can be found.

During 2016, four EU Member States – Bulgaria, Denmark, France and Sweden – ratified Protocol No. 15 to the European Convention on Human Rights, which reduces the time-limit for applications and stresses the subsidiarity principle and the margin of appreciation. With this, 17 EU Member States have ratified the protocol. An additional eight have signed it, including Croatia in 2016.

Greece in 2016 became the 20th EU Member State to become party to the European Social Charter (revised). The remaining eight are all party to the original Charter.

In 2016, Bulgaria ratified the Additional Protocol to the European Charter of Local Self-Government – concerning “the right to participate in the affairs of a local authority” – becoming the ninth EU Member State party to the instrument.

The Czech Republic signed the Council of Europe Convention on Action against Trafficking in Human Beings in 2016. The other 27 EU Member States are already parties to the convention.
Three additional EU Member States – Czech Republic, Estonia and Slovakia – ratified the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CSEC) in 2016, bringing to 26 the number of EU Member States who are parties.

Estonia in 2016 ratified the Council of Europe Convention on Access to Official Documents – the fifth EU Member State to do so.
Following Belgium and Romania’s ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) during the year, 14 EU Member States are now parties. With the Czech Republic’s signature in 2016, all remaining 14 have signed the convention. The EU itself also took steps to become party to the convention in 2016, signing on 13 June 2017.

Greece ratified the (revised) European Social Charter in 2016. In addition, three other EU Member States – Latvia, Malta and Slovakia – accepted new provisions under the revised European Social Charter, expanding the list of rights by which they are bound.

A procedural change has reduced the reporting obligation to every other year for states that have accepted the collective complaints procedure on the European Social Charter. Additional limitations on the obligation to report also apply. In 2016, the European Committee on Social Rights (ECSR) required state parties to submit information on their laws and practices giving effect to provisions in the thematic area “employment, training and equal opportunities”. Conclusions were issued in relation to 23 EU Member States.

The ECSR deemed five EU Member States to be in conformity with 85 % or more of the examined provisions of the Social Charter: Estonia, Finland, Germany, Latvia, and Lithuania. Four Member States were deemed to be in conformity with fewer than 70 % of examined provisions: Bulgaria, Malta, Romania, and Slovakia.

Percentage figures are based on those provisions within the year’s scope of assessment to which states agreed to be subject to.

Like the previous year, 2016 saw a sharp increase in applications from Hungary allocated to a judicial formation from the European Court of Human Rights (ECtHR). For the second year in a row, it is the EU Member State with the highest proportion of applications per 10,000 inhabitants. Statistics released in the ECtHR Annual Report 2016 show that Hungary’s figure stands at 5.67 per 10,000 inhabitants. Romania, meanwhile, has also seen a sharp increase in applications, from 2.32 in 2015 to 4.14 in 2016. Both Ireland and the United Kingdom had 0.06 applications per 10,000 inhabitants, the lowest proportion in 2016. Denmark and Germany follow closely thereafter, with 0.08 applications allocated to a judicial formation of the ECtHR per 10,000 inhabitants.

The figures for most EU Member States have remained relatively stable, but the increase for a few has led to the EU average rising from 0.75 in 2014 to 1.75 in 2016.

After decreasing for a couple of years, the number of cases involving EU Member States that are pending before judicial formations at the ECtHR increased this year. At the end of 2016, 30,986 such cases were pending – compared to 24,417 in 2015. The largest numbers of pending cases relate to Hungary, Romania and Italy, ranging from 6,000 to almost 9,000 cases, respectively. At the other end of the spectrum are Ireland, Luxembourg and Denmark, with between 13 and 25 cases pending, respectively.

In 2016, out of the 488 judgments on the 28 EU Member States, the court found rights violations in 360 (74 %) of the cases. This is a slight decrease compared to 2015, when 77 % of judgments found at least one violation of the European Convention on Human Rights.

The length of proceedings – the most commonly judged violation in 2015 – remains significant. However, the court found more violations relating to inhuman and degrading treatment as well as to the right to a fair trial.

Bulgaria and Croatia in 2016 had the highest rates of judgments that take longer than five years to implement; in Bulgaria that number decreased, while in Croatia it increased. The overall trend in EU Member States has been an increase in the number of such cases. Meanwhile, in Greece, Italy and Romania, the number of leading cases not yet implemented decreased in 2016.

France, Italy and Luxembourg ratified the Third Optional Protocol to the UN Convention on the Rights of the Child – allowing for individual complaints – in 2016. This means 12 EU Member States are now parties. An additional 7 have so far signed it.

With their ratification of the Convention on the Rights of Persons with Disabilities (CRPD) in 2016, Finland and the Netherlands became the 26th and 27th EU Member States to become parties. Ireland remains a signatory only, though ratification is said to be imminent.

Finland ratified the Optional Protocol to the Convention on the Rights of Persons with Disabilities as the 22nd EU Member State to become party. Three additional states have signed the instrument.

All EU Member States except Ireland had by the end of 2016 ratified the Convention on the Rights of Persons with Disabilities (CRPD). In 2016, Finland ratified the Optional Protocol to the CRPD, becoming the 22nd EU Member State to do so.